February 2, 2009

Should all federal plea agreements be generally available on-line?

I just saw this fascinating article from The National Law Journal, headlined "Federal judge defies DOJ wishes, orders all plea agreements to be posted online." Here is how it starts:

Chief Judge Federico Moreno of the Southern District of Florida, bucking the wishes of the U.S. Department of Justice, has ordered all plea agreements to be posted online.

In an order issued on Jan. 22, Moreno stated that as of Feb. 20, all plea agreements "will be public documents, with full remote access available to all members of the public and the bar, unless the Court has entered an order in advance directing the sealing or otherwise restricting a plea agreement." Moreno's order rescinds a previous order of April 2007 taking all plea agreements offline and making them accessible for physical viewing only at the courthouse.

The issue of whether plea agreements should be publicly available, able to be viewed electronically through the PACER system, is a controversial one, pitting prosecutors against defense lawyers and First Amendment advocates. In 2007, the Justice Department asked the Judicial Conference to restrict electronic access to plea and cooperation agreements in order to keep information about cooperating witnesses secret.

This is a dynamic and important issue that implicates a lot more interests and concerns than even DOJ and defense attorney often acknowledge. A recent student note (discussed here) spoke to some of these issues, and also generated some terrific comments. Perhaps readers will use the comments to this post to continue an on-line dialogue about on-line plea agreements.

Comments

"The advent of electronic access to case files gives rise to security concerns previously unrealized in the era of paper records."

Bah Humbug. Is he trying to saying that there was no witness intimidation in ages past? That's BS. There is not a single reason to oppose electronic access that does not amount to, "Oh nos, we have technology. That changes everything. Fear! fear! fear!"

For one example, what if someone gets their record expunged but it is spread all over the 'Net and impossible to remove all the copies?

Posted by: George | Feb 2, 2009 6:51:42 PM

George. I am not familiar with all the cases you list there but if IIRC Loder actually stood for the principle that multiple public policy goals were served by public access to the courts even if there was no conviction.

"For one example, what if someone gets their record expunged but it is spread all over the 'Net and impossible to remove all the copies?"

So, I fail to see a problem here. That's really no different than saying that the record was expunged but the court clerk gossiped about it and now the rumor still is going around.

I recognize the fact that technology results in an increase in the breadth of dispersion, permanence, and ease of access of public records. But I am unpersuaded that a mere in increase in the quantitative nature of these conditions results in any meaningful qualitative difference. People could do all sorts of things before; they can do more of it now. So?

Posted by: Daniel | Feb 2, 2009 9:07:21 PM

Without having given the issue any serious study, my starting position would be to lean toward a rule of default disclosure. Not to say that there might not be plenty of good reasons to keep some information private, but create a structure that causes the government to identify those reasons and argue them on a case-by-case basis (or, perhaps, where appropriate, on a limited class basis). The government will be less likely to over-restrict access to information if it has to allocate resources to do so.

Public access to the workings of government should be the presumption absent the need to serve some countervailing value. If the government has its way, it will always set the default as no access. (I am still agnostic on whether Obama can actually change this fundamental rule of power...)

Posted by: Observer | Feb 2, 2009 10:31:25 PM

Daniel, what purpose is served by me knowing what the plea agreements are in New York when I live in California? A statistical compilation, without identification information, especially personal details like SS number and the like, would be one thing, but there is no reason I need to know it is John Doe the record pertains to. The expungement may not matter to you, unless it was your expungement. I realize the collective has more influence than the individual nowadays, but what if it was your record that were expunged and you applied for a job. The prospective employer does a Google and finds the old record that was expunged but the one he finds does not show it expunged. By then the position may be filled. (See the Central Valley reasoning on that.) The employer may not hire you and may not tell you why. Or, if he/she did tell you, at the least you would have to run through the hoops to prove it actually was expunged. But then the employer may say he/she doesn't care if it was expunged. Get lost. It is not likely this employer would know what gossip the court clerk is up to. This was in large part the reasoning of the Reporters Committee opinion. If someone really needed the information they would go to the court to get it or pay someone to do so, and most employers where the work is sensitive in any way have the authority to run record checks. I'm not sure what you think the benefit of the ease of access of public records in this context. Who would it benefit and why? This seems like another example of the First Amendment being selfish.

Posted by: George | Feb 3, 2009 1:58:30 AM

George, Just b/c someone has their "record" expunged, does not mean the event didn't happen. In fact, in most places it is fair game for an employer (or the bar) to ask about expungements.

Here are a few reasons to make the plea agreements public.

1. It is good to know who has plead guilty at any time in the past. I do not want to associate with people that are criminals, regardless of whether they had their records expunged. It is not worth the risk. High class people don't get arrested.

2. It is good to know how the government is litigating criminal issues. We need to exercise some control over prosecutors, and being able to scrutinize each and every plea agreement will go a long way.

Plea agreements should definitely be public, for a long list of good-government public policy reasons.

Moreover, DOJ's stance violates Obama's recent directive for a agencies to adopt a presumption of disclosure for information in their possession. I'm hoping the new AG will reverse DOJ's policy after he does the FOIA review the President has requested.

All court documents should be public unless there are compelling, specific reasons related to an individual case. Closing them opens the door for widespread abuse.

S.scotus, then the public record of a plea won't help you that much. What if you don't have online access when you meet someone? What is needed is a “REGISTERED OFFENDER” stamp on driver's licenses. That way you can ask to see the license before you shake hands, allow them to serve you food in a restaurant, work on your car or anything else that might dirty you. The Nazis had the best system though. You wouldn't even have to go to the trouble of asking for a license. It's rather primitive though. Likely within a generation "registered offenders" of all stripes will have implants that broadcasts their convictions and everyone will have a receiver that translates warnings and sounds an alarm. If the alarm sounds too often, like with some firewalls, the elites could adjust it to prejudicial taste.

Posted by: George | Feb 3, 2009 11:13:47 AM

Plea agreements are public business in every way. There is not a valid reason for them not to be published

Posted by: beth | Feb 3, 2009 11:27:04 AM

Beth, they are published already. The question is if they need published to the identify thieves in Russia.

Posted by: George | Feb 3, 2009 11:31:55 AM

Federal courts--at least where I'm at in the Northern District of Texas, already have rules prohibiting the publication of identity information.

Posted by: Mark | Feb 3, 2009 8:45:49 PM

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